SUMER SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The instant miscellaneous petition has been filed by the petitioner challenging the order dated 30.4.2008 passed by the learned Additional Chief Judicial Magistrate, Jaisalmer in Criminal Case No. 80/2008, whereby cognizance has been taken against the petitioner for the offences tinder Sections 452, 353 and 504 Indian Penal Code and on a revision petition, being Revision Petition No. 26/2008, has been partly modified by the learned Sessions Judge, Jaisalmer. The learned Sessions Judge, whilst partly allowing the revision petition filed by the petitioner, set aside the order taking cognizance regarding the offence under Sec. 452 Indian Penal Code and converted the same to an offence under Sec. 447 I.P.C.

(2.) Briefly stated the facts of the case, relevant and necessary for the disposal of the instant miscellaneous petition, are that one Ram Chandra Gupta, who was the Executive Engineer in Indira Gandhi Canal Project, filed a report on behalf of Shri Birdhi Chand, Chief Engineer of Indira Gandhi Canal Project, alleging inter ilia that on 4.11.2007 when the Chief Engineer was sitting in his house, at that time the petitioner, who was the Pradhan of Panchayat Samiti at the relevant time, entered into his house in the evening at about 8.00 P.M. and started hurling abuses to the Chief Engineer. It is alleged that earlier at about 7.30 P.M., the petitioner had called the Chief Engineer on his mobile and after talking to him about the water supply in Ramgarh area and irrigation from the canal, the petitioner abused him over telephone as well and threatened him of dire consequences. On the basis of this report, an F.I.R. for the offences under Sections 451 and 504 Indian Penal Code was registered and the investigation ensued. During the course of investigation, the statement of the Chief Engineer was recorded under Sec. 161 Code Criminal Procedure In his statements recorded under Sec. 161 Code Criminal Procedure the Chief Engineer has alleged that at about 7.30 P.M., the petitioner called him on his mobile number and had hot talks with him regarding the distribution of water in Ramgarh area; thereafter when the Chief Engineer was sitting in the garden of his Government accommodation at about 8.00 P.M. the petitioner opened the gate of his premises and accompanied with fifteen to twenty persons, started abusing him and threatened him. It is also alleged that the petitioner was appearing to be under the influence of liquor and he asked the Chief Engineer to have a talk with the Chief Minister and the concerned Minister. On refusal, the petitioner is said to have become enraged and threatened him with dire consequences and made a preparation to assault him, on which the officer stated that he became afraid and went inside his house and informed the District Collector and the Superintendent of Police about the incident over telephone. On hearing the telephonic talks of the officer, the petitioner and his companions went away. He has further stated that he was not beaten but jostled up. The police has also prepared the site plan and as per the site plan, the incident is said to have taken place in the open chowk of the complainant's Government bungalow, where the table and the chairs are placed.

(3.) Learned counsel for the petitioner, placing reliance on the aforesaid circumstances, submitted that the petitioner is a public representative and in his capacity as a public representative, he had gone to apprise the Chief Engineer about the grievances of the public at large. Learned counsel submits that the intention of the petitioner was not at all to commit the offences. He has submitted that the entrance of the complainant into the Government bungalow of the Chief Engineer does not amount to an offence under Sec. 448 Indian Penal Code because for the purpose of application of the said offence, the act of a person said to have committed the offence has to be within the category of criminal trespass and for the said act, the intent to commit the offence is primary. He has submitted that in this case the admitted case of the prosecution is that the petitioner was desirous of talking to the Chief Engineer in reference to the water supply in Ramgarh area and as such ex facie the ingredients of the offence under Sec. 448 Indian Penal Code are not made out against the petitioner. He has further submitted that admittedly the chief Engineer was not performing any official duty when the petitioner went to his house and as such the offence under Sec. 353 Indian Penal Code cannot be said to be made out against the petitioner. It is also argued that the essential ingredients of the offence under Sec. 504 Indian Penal Code are also not made out from the admitted allegations of the complainant because the intentional insult, which has been attributed to the petitioner, is not alleged to have been made with intent to provoke the breach of peace, thus it is submitted that the order taking cognizance, as modified in the revision, deserves to be quashed.